STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PAMMIE J JOHNSTON, Employee

VILLA PINES LIVING CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07002780MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about eight months for the employer until she terminated her employment on November 13, 2006. She then moved to Arizona and began work on February 21, 2007, as a caregiver for a nonsubject, subsequent employer, the owner of an assisted living facility. Her last day of work for the subsequent employer was April 4, 2007 (week 14).

The employer's owner testified that the employee's job ended when she was taken to jail by police officers. The employee called the owner and informed her that this was a mistake. The Department of Health Services in Arizona requires workers caring for children or the elderly to have a clear record. The employee needed to have an FBI clearance fingerprint card. The Arizona police arrested the employee on a fugitive warrant. The employee was placed in jail and made a court appearance. The employee denied the charges. A photo identification and a copy of the warrant was then requested from the State of Wisconsin. However, the State of Wisconsin did not provide this information and on May 8, 2007, an Arizona Judge/Commissioner issued an Order dismissing the case against the employee.

The issue to be decided is whether the employee's actions, which led to her discharge by the employer, constitute misconduct connected with her employment.

The employee argued that the discharge was not for misconduct, that her absence from the workplace was the result of a mistake. The nonsubject employer offered no evidence to establish that the employee was arrested for some fault on her part. The evidence in the record does not support a conclusion that her discharge was for misconduct.

The commission therefore finds that in week 14 of 2007, the employee was discharged, but that her discharge was not for misconduct, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 14 of 2007, if otherwise qualified.

Dated and mailed November 2, 2007
johnspa . urr : 145 : 1 MC 617

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission reversed the ALJ's decision because it reached the conclusion that there was insufficient evidence of wrongdoing on the employee's part to support a finding that the employee's discharge was for misconduct. The ALJ in this case based her decision on information that the ALJ obtained from the Wisconsin Circuit Court Access Program (CCAP) website, in particular finding that the employee's testimony "did not rebut the presumption of accuracy of charges posted on the website." The commission disagrees with the ALJ's conclusion that there is any presumption of accuracy of charges posted on the CCAP website. The website itself indicates that the data on the website is not created by CCAP or WCCA (Wisconsin Circuit Court Access) and that as such they are not responsible for errors or omissions in the data found. In State v. Bonds, 292 Wis. 2d 344 (2006), the court explained that CCAP reports were not sufficient to prove a conviction, beyond reasonable doubt. The court discussed in its decision some of the limitations of the CCAP system. The court stated that "a CCAP report, by its own terms, is of questionable accuracy." Bonds at p. 374.

In addition to doubts about the accuracy of CCAP, the CCAP report in this case was not offered by the employer. While the employer argued that the employee needed a clear record in order to be a caregiver in Arizona, it presented no evidence to establish that the employee did not have a clear record. The employer testified the employee was no longer working for it when the employer discovered there might be some issues in the employee's past. The employee testified that she had on one occasion paid a fine and was never informed that there were criminal charges associated with the fine. It was the employee's belief that the fine had been for a civil matter. The ALJ made the determination to go outside of the record and look at the CCAP records, taking more of an advocacy role than that of a decision maker. The commission concludes that this was inappropriate, in particular in a case in which the employee had been discharged prior to the employer's discovery that there were any potential problems with the employee's application and therefore she could not have been discharged for these reasons.

cc:
AZ-Prats Care Home
Villa Pines (Friendship, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2007/11/05